Bumps Along the Path to Citizenship

Put not your faith in federal bureaucracies.

Peter Skerry

February 25, 2013, Vol. 18, No. 23

President Obama and the Democrats have made clear that their “path to citizenship” for illegal immigrants should be as direct as possible. Many Republicans are not sure they want any such path. Those who do, like Senator John McCain, call for “a long and arduous process.” His fellow Arizona senator Jeff Flake agrees: “As more people learn of all these requirements that are put in place—back taxes, pay a fine, learn English not just for citizenship, to get your green card—and learn that it’s going to take a while, they’ll be more comfortable with this path.” Yet the longer and more arduous this path, and the more twists and turns it involves, the less effective it will be in reassuring Americans that illegal immigrants aren’t being given an unfair advantage.

Republican lawmakers are appropriately attentive to such anxieties, but in the aftermath of the November elections, they are also straining to be fair to millions of undocumented immigrants, who came here, after all, because other Americans wanted to hire them. To negotiate this minefield, Republicans should consider simpler options that offer prompt relief to the undocumented, while imposing fewer complicated rules and penalties that necessarily get administered by government bureaucracies in which so many Americans justifiably lack confidence.

Our experience with the Immigration Reform and Control Act of 1986 (IRCA) confirms suspicions that whatever Congress manages to agree on in the months ahead will not be satisfactorily implemented. Most glaring has been the complete inadequacy of IRCA’s sanctions against employers hiring illegal immigrants. As for IRCA’s notorious amnesty program, it was thrust upon an already poorly managed agency—the Immigration and Naturalization Service—that was more focused on keeping illegals out than on letting them in. Yet under pressure from immigrant advocates and activist lawyers, INS transformed itself into a legalization machine. In California, the hardline, Reagan-appointed INS regional commissioner literally donned a sombrero and went on the road with two compadres as “the Trio Amnestía” to promote the amnesty program.

There was nothing objectionable in any of this. In fact, it reveals how well-orchestrated external pressure can overcome bureaucratic inertia. But for many Americans, IRCA has left a disturbing legacy—hundreds of thousands of fraudulent amnesty applications that were passed on favorably. New York Times reporter Roberto Suro characterized one of the two major components of the amnesty program as “one of the most extensive immigration frauds ever perpetrated against the United States government.”

It seems doubtful that this specific fiasco will be soon repeated. We do learn some things. And the INS has been absorbed into the monstrous Department of Homeland Security, which has plenty of problems but is undoubtedly an improvement over the old INS. In any event, DHS would almost certainly do a reasonable job of collecting the fines that just about everyone agrees must be levied on illegals wanting to regularize their status.

One looming challenge here is the English-language requirement. Existing ESL programs are already oversubscribed and woefully underfunded. Even if additional resources were appropriated for such efforts—a dubious proposition in the current context—it is not clear how well English is currently being taught to poorly educated immigrants preoccupied with working to support their families. This reflects a deeper neglect of assimilation, which Americans routinely call for but invariably do little to promote. None of this is likely to change under pressure to process millions of immigrants suddenly eligible for legalization. Indeed, the likely scenario is increased demand, inadequate resources, oversubscribed classes, and the inevitable—and in the event, understandable—lax enforcement of standards so as not to obstruct the path to citizenship. After all, who’s going to want to stand in the way of a middle-aged cleaning lady with three kids becoming a citizen just because she doesn’t speak much English?

As for collecting back taxes from illegals, prospects are even dimmer. To begin, illegals already pay sales and property taxes. Many also pay Social Security and other payroll taxes. But because they use fraudulent documents, those funds go to accounts under someone else’s name. Some pay income taxes using Individual Taxpayer Identification Numbers (ITINs), devised by the IRS as an alternative to Social Security numbers for foreign nationals, including the undocumented.

The overarching question is whether the tax proceeds to be collected from low-income, unskilled workers would exceed the costs of securing those taxes. It would be a nightmare, for example, to reconstruct work histories in the informal sector where the undocumented typically labor. Even Steven Camarota, research director of the restrictionist-oriented Center for Immigration Studies, concludes that “this is not a provision to generate income, it is a provision to create the illusion of toughness the public likes.”

The irony is that as Republican lawmakers attempt to respond to popular outrage about illegal immigration, they turn to procedures and agencies that their constituents typically—and justifiably—distrust. Put another way, Republican immigration reformers are relying heavily on an administrative state whose routine functioning is the source of much of the disaffection with government on which their party’s political success has been based.

When it comes to immigration policy, popular skepticism is not misguided. Americans’ diffuse anxiety about illegal immigration is no match for the narrower, well-organized immigrant advocates who will be litigating in the federal courts, plying the halls of Congress and the agencies, and working the media long after voters have focused on some other issue. Americans may not be able to articulate this scenario, but they feel in their bones that something is wrong when their elected representatives in Washington resort to such complicated schemes.

There is no silver bullet here. Given the institutional context within which Republicans must function, there is no avoiding such dilemmas. But Republicans must manage them skillfully and avoid alienating their base as they struggle to address immigration more responsibly than they have in the recent past.

My own view is that Republicans must keep their immigration proposals tough, fair, and simple. This is why I have argued for awarding illegals permanent noncitizen resident status—with no option ever of naturalizing. Such an approach would deliver up front a clear and decisive penalty to illegals and avoid -complicated schemes designed to elicit remorse, levy fines, and extract back taxes. Meanwhile, illegal immigrants would receive what I believe most of them really seek—the ability to live and work in America without fear of arrest and deportation. Now that’s simple!

Peter Skerry teaches political science at Boston College and is a nonresident senior fellow at the Brookings Institution.